Lancaster & Mintzer's Appeal

Mr. Justice Trunkey delivered the opinion of the court, February 15th, 1886. The decree removing Alexander Thackara from the office of executor and trustee is unassailed. There was no written petition or motion for the appointment of an administrator and trustee in the place of Thackara. It is remarked in the opinion filed in the Orphans’ Court, ‘‘that the appointment of the trustee appears from 'the record to have been inadvertently made, and not in accordance with the evident intent of the Acts of Assembly upon the subject, and the established practice of the court.” That this is true is alleged by the appellants and not gainsaid by the appellee. Reyond question, Mrs. Lancaster had qo knowledge of the proceeding until after the appointment of the Guarantee Trust [531] and Safe Deposit Company, and within five months from the date of appointment, she presented her petition for vacation of the decree. That period is not so long as to prejudice her right. She did no act of acquiescence. Her receipt of the income due her, shortly before presentation of the petition, in nowise induced any action to the injury of the trustee. When the appointment was made on the oral motion of one party in interest, and the appointee accepted the trust and entered upon its duties, Mrs. Lancaster was without notice and therefore silent. Why should this inadvertent decree, made in violation oí the statutes and established practice, stand ? True, the appointee is of high character and good capacity, no fault or neglect in the management of the trust is alleged, and to vacate the appointment will cause considerable expense, and may not be to the pecuniary advantage of anybody. But, not complaining of the fitness of the appointee for faithful and efficient performance of the duties of the trust, the appellants claim that their rights were wholly disregarded in the proceeding for the appointment, aside from mere irregularities and absence of a petition, in this, that none of the parties in interest, except George W. Mintzer, had notice or knowledge, and therefore no opportunity to appear. Their right to notice under the the statutes enacted prior to 1868, is clear. Under the Act of April 9th, 1868, P. L., 785, in the city of Philadelphia, “the cestui que trusts, or the majority of them having the life estate,” shall have the right to elect or choose trustees to execute the trust, and the court shall appoint trustees as chosen or elected by the parties. Since that enactment it is imperative that all parties having a life estate shall have notice* even if it were otherwise under the other statutes relating to the subject. Though it was decided in Stevenson’s Appeal, 68 Pa. St., 101, that the Act shall not be construed to compel the court to appoint an improper person on the nomination of the parties, yet the court is bound to hear their petition. If a majority of the interested persons choose a trustee, the court ought not to act, unless the minority appear or have notice. The minority may assent, or give information that the majority present an unfit person. Or the person may be in every way honest and capable, and it be improper to appoint him an administrator and trustee, as when he is already guardian for a minor interested in the estate. Where all parties have been warned the court is well advised for judgment. The court judges of the fitness of the person, and whether it would be improper to appoint him, and is not bound to appoint one deemed unfit or improper because he is named by the parties. All parties interested in a proceeding in the [532] Orphans’ Court are entitled to notice of every petition or motion, not grantable, of course, as provided by .the statutes. But of what avail is the right to notice and opportunity to be heard, if upon complaint for its deprivation, it is a good answer that to set aside the unlawful act would result in pecuniary loss to the complainant as well as the parties who moved that it be done ? As well might it be said when judgment has been entered against a man in default of appearance, without the issue or service of a writ, that to strike it off would put the parties to costs and expense, and it shall stand unless the defendant shows he has a good defence against the claim on which it was founded. Where an order, decree, or judgment has been wrongfully entered without notice to a party who was entitled to notice, such party may demand its vacation, at least to the extent that it affects his interest. His right is that he be heard before the judge or court decides, not that there may be an ex parte hearing and adjudication, after which he may, if he can, show that the adjudication unjustly affects him. The decree that the “ Register of Wills is authorized to grant letters of administration d. b. n. c. t. a. on said estate to the Guarantee, Trust and Safe Deposit Company of Philadelphia,” and said company is appointed trustee under the will of William G. Mintzer, deceased, is reversed. Appellee to pay the costs out of the trust money in its hands. Record remitted for further proceeding.